Posted
by
timothy
on Friday January 25, 2013 @07:38PM
from the perhaps-they-can-call-it-willful dept.

FunPika writes "Jonathan Coulton, who is known for songs such as "Code Monkey", is claiming that his cover of "Baby Got Back" was used without permission on Glee, a television show aired by Fox Broadcasting Company. When the Glee version appeared on YouTube last week, Coulton suspected that it sounded similar to his cover, and several of his fans confirmed this by analyzing the two tracks. Despite Coulton contacting Fox, they continued with airing the episode and have placed the song on sale in iTunes."

IANAL, but if you believe your IP is being violated, wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money? Especially since this guy is on the books as having noticed his IP is being violated.

wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money?

Generally, no. In the specific case of trademark law, you can lose your trademark if you don't defend it, but with copyright and patents, there is no such 'problem'. Submarine patents are a real thing, look at the case of GIF.

wouldn't it look pretty bad in court if you just let damages accrue, and only filed a case after the defendant had made a bunch of money?

Generally, no. In the specific case of trademark law, you can lose your trademark if you don't defend it, but with copyright and patents, there is no such 'problem'. Submarine patents are a real thing, look at the case of GIF.

If you know about copyright infringement and don't act on it, then infringers might be able to employ the defenses of "laches" (unreasonable delay) or "equitable estoppel" (misleading the infringers to believe you're not going to pursue them). I'm not familiar with the GIF case, but my guess is that they were able to show that they were still actively enforcing the patent (even if "actively" is an exaggeration).

He contacted Fox. Everything is on them now. (And actually, it doesn't really matter whether he contacted them or not. But he probably has a more solid case since they knew of the infringement claim and continued to infringe.)

And Fox has contacted back ( http://www.jonathancoulton.com/2013/01/18/baby-got-back-and-glee/ ) to tell him he should be grateful for the exposure they gave him. You know, that exposure they gave by using his arrangement without any credit whatsoever. The Super Secret Exposure. I wonder how grateful Fox is for the exposure that a Bittorrent user gives them by sharing out full episodes of Glee.

It almost makes me want to start watching Glee just so I could stop watching them in protest.

In copyright law (and in most, if not all, areas of IP) there is a defense called "equitable estoppel." The copyright owner's lack of action against an alleged infringement that he or she knows about can sometimes be interpreted as permission to continue use. There's also a defense called "laches" (pronounced: "latches") which can be employed in response to unreasonable delays in prosecution.

With a patent, you may not (in the USA) claim any damages that happened between the time when you first became aware of the infringement and the time when you notified the infringing party.

I think you mean "With a patent, you may not (in the USA) claim any damages that happened between the time when they can prove you first became aware of the infringement and the time when you notified the infringing party.

Rolling stones bent over The Verve and took all the money generated from their #1 hit because it contained "too much of a sample" that they had licensed.

I say let this track run iTunes, and then sue them for all the money it generated.

They Also did the exact same to Carter the Unstoppable Sex Machine over the song After The Watershed [youtube.com]
They took Carter for a sizeable sum of cash and Jagger then got writing credits as well. apparently the song also contained a bass riff from "satisfaction"
Carter then pretty much used the money from their next album to pay the rubber lipped old twat linky [wikipedia.org]

wtf.... BONGOS gave the copyrights to the song over the Jagger and Richards? that is fucked up....that song is 99% not written by those douche bags.

Then you obviously haven't heard the mix they are talking about:

"Song credits

Although the song's lyrics were written by Verve vocalist Richard Ashcroft, it has been credited to Keith Richards and Mick Jagger after charges by the original copyright owners that the song was plagiarized from the Andrew Oldham Orchestra recording of The Rolling Stones' 1965 song "The Last Time"."

Ooh, I'll have to write the Rolling Stones a thank-you letter for getting that terrible, maudlin piece of crap off the radio. And here I thought the Stones hadn't done anything worthwhile since the 70s.

It did the reverse for a while - Richard Ashcroft said he'd never sell out and allow any of his music to be used on TV advertisements.. After the decision, the new copyright holders thought different...

And Youtube, obviously. And most importantly: Hulu and any other sites that host Glee on demand -- Fox, for example. Dish and DirectTV also have on demand access, are they susceptible to DMCA requests?

Not sure here, but if I recall correctly all Fox would have to do is file a counter notice and then the on demand sites could put it back up and be out of the lawsuit loop. Then he would have to sue and win and get the courts to order it removed. This makes it a question of affording sufficient lawyer to win.
Being right, and obviously so, doesn't guarantee a win, just multiplies your lawyer money.

Coulton got the ok to do a version of baby got back. He did a new and unique arrangement and performance. Glee did an identical rip-off of his song without permission, then aired it and put it on itunes for purchase.

There is separate licensing for covers and derivative works. Coulton only got a license to cover, although his certainly an original take on it, he has no special ownership over his version, anyone else getting a license to cover can perform a version identical to coultons.

There is separate licensing for covers and derivative works. Coulton only got a license to cover, although his certainly an original take on it, he has no special ownership over his version, anyone else getting a license to cover can perform a version identical to coultons.

Except the Berne Convention gives him copyright over the derivative work. They cannot just steal it and say "welp, it's a cover, so you have no rights." Especially since it's an original arrangement (he didn't just sing along to the original instruments).

And it's not that they just got a licence and decided to do an acoustic, folk-like version like Coulton did. They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line (whereas the original was "Mix-a-Lot's in Trouble"), and this is key: On top of his original instrumental track.

They blatantly stole a song online, are attempting to profit from it, and oh yeah, the producer for Glee basically taunted Coulton on Twitter, suggesting he should be happy he got ripped off.

Oh, and did I mention that this isn't the first time they've done it? By far?

They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line

Although the Glee version is a very close reproduction, I don't think it's done by channel phase inverting trick because that technique results in a mono backing track, and their backing track is clearly stereo. Plus if you listen closely on headphones you can hear they're using different drum samples and the instruments sound a bit different.

However, it's worth noting that the only thing used in Jonathan Coulton's cover from the original is the lyrics. The cover has completely new chord progression and vocal melody that doesn't exist in the original rap at all. Essentially in this case the "cover" is a completely different song with the lyrics from "Baby got back", so I think it's still a clear copyright violation regardless of how they reproduced Coulton's music.

They literally used inverse phase wave mapping to remove the vocals on his song, then sang the same lyrics, including the "Johnny C's in Trouble" line

Although the Glee version is a very close reproduction, I don't think it's done by channel phase inverting trick because that technique results in a mono backing track, and their backing track is clearly stereo. Plus if you listen closely on headphones you can hear they're using different drum samples and the instruments sound a bit different.

However, it's worth noting that the only thing used in Jonathan Coulton's cover from the original is the lyrics. The cover has completely new chord progression and vocal melody that doesn't exist in the original rap at all. Essentially in this case the "cover" is a completely different song with the lyrics from "Baby got back", so I think it's still a clear copyright violation regardless of how they reproduced Coulton's music.

Literally they are note for note the same as far as instrumental bits go. Ok, there are SMALL differences are when they used the audio version of a poorly done photoshop job to remove certain elements, like the duck quacking (which can still be heard, faintly), but, that's just me.

And yeah, it's a clear copyright violation. And the guys from Glee should know better. However, I *believe* their stance is that JoCo is just some silly little Internet artist and they can get away with this because what can he do, eh?

I personally think they vastly underestimated how big his followings are on the Interwebs, and how loud us computer nerds can be when we feel one of our own (remember, Coulton was a Slashdotting computer programmer before making it big as a musician) is being thrown under the bus.

Arrangements of nonprotectible elements are, in fact, copyrightable. See Reader's Digest Association, Inc. v. Conservative Digest, Inc., 821 F.2d 800 (D.C. Cir. 1987). (magazine cover made up an arrangement of nonprotectible elements was copyrightable) Note, though, that in Reader's Digest, only the arrangement was protected by that copyright. If you're talking about "arrangements" in the musical sense, those are only copyrightable after they are "fixed in a tangible medium." 17 U.S.C. 102. That is,

as a typical/.er I did not RTFA... but how can he claim rights to a cover? he covered a song, and he is claiming copyright on the cover of a song, that is copyritten by someone else? Am I understanding this correctly???

Coulton parodied a song and is entitled a copyright protecting only his original contributions to the parody. Someone else copying the song verbatim happens to copy his protected contributions and thus is infringement. If they simply made their own parody on the original song (without copying the Coulton parody), then we'd be having a different discussion.

OK so that's me replying to myself twice in a row -- bad form, I know.

But after the last post I remembered stuff I'd read about the development of the record industry in the states. Basically, in the old days there wasn't really any such thing as a "cover", because hardly anyone wrote their own stuff, and everyone was recording exactly the same thing anyway. But "derivative works" were recognised as separate works in law, and record labels started working that to their advantage. They would get their art

We aren't talking about someone doing a 'similar' cover, we are talking about Fox, by all appearances, using his Karaoke track verbatim against his license and singing over it. Hell, even the lyrics kept "Johnny C's in trouble" instead of the original lyrics. Analysis suggests they even had to work a bit to try to edit out a duck quack from his track, but still left some sign of that quack behind.

In fact, reports are that the show lifts a *lot* of differently done arrangements of well known songs done by obscure people without permission without a shred of apologetic tone or credit given.

But at least it is equal opportunity, a fair number of more well known musicians whose songs have been featured aren't exactly pleased to hear their works crop up in that show either.

IIRC, some bands sued the Guitar Hero and similar games because they made almost identical cover versions.

I don't know, but I'll bet it costs a lot less to do a professionally-released (so to speak) cover than to republish actual recordings. So what to do when people really get their rocks off to the big hit original and dislike even slight variations? Easy! Clone it down to the atomic level.

But maybe that "cover", while technically new, is so close it falls afoul of copyrights or the contracts studios w

The question is whether Glee crossed the line from "sounds similar to" to "used the same background recordings as". Coulton has a karaoke [jonathancoulton.com] version available, and at one point it was possible to purchase [creativecommons.org] a usb drive containing source tracks of this song (among others) as part of a creative commons fundraiser, so it's certainly feasible that the Glee version simply stuck new vocals on top of JoCo's existing tracks. There is some strong [soundcloud.com] evidence [musicmachinery.com] that that is exactly what happened.

It's worth pointing out that this was released under Creative Commons "Attribution-NonCommercial [creativecommons.org]" license, which means anyone can adapt (remix, sing over, etc.) and distribute it, but must give due credit to the original author and must not use it for any commercial purpose.

What Glee released is not a "cover." It actually samples his recording. If they'd re-recorded all the instrumental parts in the exact style that JoCo arranged them, they'd be in the clear. But they didn't. They sang, karaoke-style, over his instrumental recordings.

From your link:

(If Glee's producers used clips of Coulton's actual recording, like the duck sound, it's different: that would be copyright infringement of his sound recording.)

What Glee released is not a "cover." It actually samples his recording.

And Coulton's version isn't just a cover either. If you listen to the Sir Mix-a-Lot version and then to the Coulton version, Coulton's puts the lyrics to a melody that wasn't there in the original rap song. Coulton owns the copyright of this melody.

What's more, Coulton also believes that Glee's music directors also illegally sampled his version, noting specifically that the sound of a duck quacking...

and then it goes on, undaunted by that detail, to talk about the legal ramifications of JoCo's claim assuming that the above is false, even though it gives absolutely no reason to doubt that it is true.

https://soundcloud.com/alacrion/joco-v-glee [soundcloud.com] Here is a demonstration of the claim's truth. Now, like, let's keep on talking about why JoCo's legal claim has no merit in some other hypothetical universe where the Glee people actually went to the trouble of re-recording it, even though they didn't in this universe.

So just noting they sound similar doesn't prove it wasn't reperformed.

And Coulton stops short of saying it wasn't reperformed, he says "he thinks he can hear a quack in there" and "maybe someone can find it for him".

There are hyper-accurate note-for-note covers out there for the purpose of avoiding copyright. Check Spotify. Prince even threatened to do it to his own songs because he didn't own the masters, just the creative copyright.

I agree that nothing has yet been proven, but I'd be very interested to hear an example of a cover that matches the tempo and beat of the original as perfectly as the Glee track does of Coulton's version.

Listen to the Soundcloud link I posted. Use headphones. This is not a hyper-accurate note-for-note cover. If it were that, there would be all sorts of stereo phasing wildness going on in your ears, because they would be all confused by the Haas effect. That is not going on because the instrumentals are the same instrumental.

Here is a spectrogram comparison I made from the first 15 seconds of each song, starting from the attack of the second 'clap' sample. They're not identical obviously, owing to different mastering and compression on the tracks, in addition to the differing vocal performances going on over top. But, the spectral components they share in common are clear. If you look at that clap sample by itself, before the vocals and other instrumentation start up, they are obviously the same sample.

More awkwardly for Fox, the Glee version uses Jonathan Coulton's revised lyrics. Listen at 2:16 (of the Glee version) to hear the line "Johnny C's in trouble". I don't know if they owe him money, but certainly a nod in his direction wouldn't have been a bad thing. I don't watch this High School Glee Factor Musical shite, so maybe someone with impaired tastes could tell us whether or not there's any kind of credit to him?

https://soundcloud.com/alacrion/joco-v-glee Here is a demonstration of the claim's truth.

Well done! Kudos to alacrion.

What would be even more convincing would be reversing the phase of one and summing them. If aligned and level-corrected perfectly the music would drop out. If not, it would do a "phaser" effect. That happens when the waveforms themselves align and add or cancel. You can't get it to happen with a cover, or even two performances by the same artist on the same acoustic instrument. It only

What would be even more convincing would be reversing the phase of one and summing them....

However, while the phasing effect from such a recording would pop out at you, if you have good stereoscopic hearing this is just as convincing: The instrumental is heard at the center, one lyric performance on the left, the other on the right. If the instrumentals were a cover rather than phase-identical they'd be heard as a "chorus" - unison performances - by two guitars, one on each side.

I spent a couple minutes in Audacity trying unsuccessfully to do this, but all I have to work with (being on my Linux work computer) were fairly low-bitrate mp3s, and one artifact of frequency-domain compression schemes is that they produce phase distortion. I‘ll give it another try later from my music workstation with flac files (if i can find some.)

When the news initially broke last week, it wasn't officially confirmed that they were going to use the song. This Slashdot post comes after the relevant episode has aired and the Glee version of the song put up for sale on iTunes.

I will quote the article, which does indeed quote Title 17, section 115 (copyright law compulsory license). The author bolds the parts he thinks are important and ignores the whole middle including a very important part that I will bold.

"A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character

The arrangement that Jonathan Coulton created is licensed under CC. They went so far as to lift the banjo tracks from the karaoke version. The killer is JoCo would probably have been fine with it if they had given him credit for the arrangement.

Actually, no. If you look up the law, arrangements are not owned by the arranger, they are owned by the original copyright holder. Even Coulton said as much in TFA.

Now, IF they sampled his actual audio (the "mechanical copyright" in legal terms) then that would be copyright infringement. It's possible they did that, but will be pretty hard to prove definitively...

Now, IF they sampled his actual audio (the "mechanical copyright" in legal terms) then that would be copyright infringement. It's possible they did that, but will be pretty hard to prove definitively...

IANAL. According to the article, because it's a cover it's not really covered by copyright law. However, since they also used Coulton's unique additions to the song (eg. 1-800-JONNIEC instead of 1-800-MIXALOT), and possibly stole his audio, I think he would have a pretty strong case on those grounds. Now, enough to overcome Fox's lawyer army? Maybe not.

I don't really see how the melody he wrote for the song is not covered though, that isn't a copy of the original song at all. A song is not solely com

According to the article, which was written by someone who knows nothing about copyright law, because it's a cover it's not really covered by copyright law.

FTFY.

A cover is a derivative work. It is covered by copyright to the extent that it contains new, original creative expression above and beyond the original work. So to say that "it's not really covered by copyright law" is pretty much completely wrong unless the cover sounds almost exactly like the original, which his cover clearly does not. At all.

I don't really see how the melody he wrote for the song is not covered though, that isn't a copy of the original song at all. A song is not solely composed of lyrics.

Oh, his melody is most assuredly covered by copyright. Unquestionably. Anyone who says otherwise is either deliberately lying or knows nothing whatsoever about copyright law. It's an independent musical expression sufficient to be protected on its own by copyright if not combined with those lyrics. Therefore, it is protected just the same as any other artistic creation. If Fox really stole his original melody, and continued to use it even after having been informed that their use was not authorized, that meets the criteria for willful infringement. I believe the words "treble damages" come to mind.

Based on what I'm reading, it sounds like Fox isn't remotely on the right side of the law here. I would strongly urge Mr. Coulton to contact a lawyer who specializes in copyright cases. What Fox's lawyers are telling him is complete bulls**t, and they're pretty much pissing their pants hoping he doesn't sue, because they have a pretty good idea how many figures they'll lose if he does.

I would also strongly urge Mr. Coulton to file a proper takedown request with Apple. This forces Fox to put all their cards on the table, and gives them notice that you intend to take action if they don't come to a reasonable settlement. It also takes their content off of iTunes for at least a few days, during which they're losing a metric f**kton of sales. This has a tendency to force their lawyers to take your claims seriously, where they otherwise might not.

That said, IANAL, and this is not legal advice except for the the "you should contact a copyright lawyer" bit.

The issue isn't the cover version, but in reality, the use of a sampled recording of Mr. Coulton's, a totally separate issue and a fairly straightforward form of copyright infringement if true.

This is a significant distinction that very few people seem to have understood in the discussions on this topic I've seen over the past week.

However, depending on the use of the recording and who owns the copyright in that recording, it's possible that the show actually did clear the use.

It seems pretty clear from his statements that Coulton did not give anyone permission to use the recordings, and I'm not aware of anyone else who would have copyrights on his recordings for this song. Any legal experts out there who can speak to what would be require to prove infringement of the recordings? The soundcloud mixes et al that are out there are pretty damni

Covers of audio recordings are NOT infringing derivative works for the purpose of the Copyright Act. A copyright holder cannot stop or successfully sue over any individual's derivation of a song so long as the mechanical license is paid. This does not have to be negotiated, because 17 USC 115 provides for a compulsory license rate for such action.

I never said that they are infringing. I merely said that they are derivative works. Whether they are infringing or not depends on whether you have a license (whether compulsory or otherwise). If they were not derivative works, you wouldn't need a license.

Also, compulsory licensing is basically irrelevant here. Fox doesn't have a compulsory license for his music. Nobody does compulsory licensing when distributing something to millions of people. Glee has an average of something like 9 million viewers, so that would cost them the better part of a million bucks in compulsory licensing fees. Major labels and TV networks and the like always negotiate a much lower rate than the statutory rate, or else they don't use your music.

A recording of the cover is entitled to copyright protection as a work of the cover artist, not the original artist.

I never said otherwise. Please reread what I said. The recording is entitled to copyright protection as a recording, in that the recording itself is an artistic work above and beyond the original. However, because it is a derivative work, the copyright protection extends only to changed elements (which includes the recording itself, by virtue of the fact that it isn't the original recording).

However, if I create a cover of a song and then somebody else does a cover of a song, and if we both imitate something that is present in the original recording, I can't sue over it, because the original recording holds copyright over that element, and mine does not. Not that this has any relevance in this particular case, of course. And that is what I mean when I say that copyright covers only changed elements.

The issue isn't the cover version, but in reality, the use of a sampled recording of Mr. Coulton's, a totally separate issue and a fairly straightforward form of copyright infringement if true.

No, that's only part of it. The issue is that Mr. Coulton's "cover" set a rap song to music that did not exist in the original work. Therefore, the music itself has a copyright separate and independent from the recording. So if they used the music, that's a copyright, violation, and if they used the actual recording, that's a second copyright violation.

As was and ever shall be. Look up the history of the concept. From the very beginning, it was invented to allow publishers to sue other publishers for releasing the same work. Never, in all its history, was it ever created to benefit artists.

The idea that copyright was invented for artists is one of the biggest of the Big Lies plaguing society, and it's a lie that's literally hundreds of years old.

The thing is that TV has MANDATORY licensing... So FOX doesn't technically have to "prepay" or ask to use any music they want. The INDIVIDUAL stations punch their cards and turn in X royalties per musical number for every Commercial and Show they air.... This avoids the "YouTube" problem, of infringing background music, everybody keeps bringing up.

He can probably get the song taken down from iTunes as that is a seperate distribution.

A show with a reported 3.5 million dollar an episode budget can't even be arsed to let artists know their stuff is going to be used....

All of these people being stolen from would be content with so little as an off-screen credit through some blog post or something. If they wanted to be decent human beings, they would have thrown in an on-screen one liner mentioning the names of the people that are actually responsible for the arrangements, rather than trying to perpetuate the lie that the people behind that show have even an ounce of original musical talent.

All this stuff they could have done without spending so much as a dime...

Funny that a show about talented underdogs used its muscle to rip off the little guy. JoCo could fight this, but would be crushed under the weight of the FOX legal system. It's like being bullied in high school all over again. Irony.

The version as aired on TV is available on YouTube [youtube.com]. Interestingly, it adds a bit more backup vocals than the audio version, in particular drowning out any evidence of the duck quack, and has some cuts that, among other things, avoid the "Johnny C" line.

There is (or was) a YouTube artist who called herself Venetian Princess who took recordings of songs and sang her own parody lyrics over the top of them. (For those keeping track, when Weird Al does a parody, he records his own version of the music, thereby avoiding this problem.) Unfortunately for her, that's infringement, of precisely the type Fox has committed. She got crushed like a bug. Her videos were yanked off of YouTube and the lawyers ate her face.

So.... we're waiting. We can expect every Glee episode to be yanked for alleged infringement now, right?

Yes, he did a cover. However, he did a specific arrangement of the song that the show took as their own. From the opening chorus to the way the guitar is played, it's the same arrangement of Baby Got Back. I have a feeling that the music arranger for the show might be let go for getting credit where credit wasn't due.

...but most of us were introduced to him by Portal. That certainly makes the song more noteworthy, though arguing about importance is probably pissing into the wind. But in the context of the GP's statement (what JoCo is known for), Still Alive takes the cake.

This was a triumph.You could at least have used the first post to point out that this is the artist who wrote and performed "Still Alive" from the video game Portal: https://www.youtube.com/watch?v=Y6ljFaKRTrI [youtube.com]Not sure how this wasn't in TFS.

Look, even though I think the song is shit, the cover is shit, the show is shit, and all the people that were involved in shitting all over each other just because they cant be bothered to acknowledge each others shitty efforts are shitty people, I still give shit about this shit because its all right for fox to rip people off when they have trucks of money already, but it's not all right the other way around? Just bullshit.

That would be $150 000 per infringement times 6 million viewers, but it might just be per track not per downloaded copy. That single mom [msn.com] had to pay ~$35 000 per track, and it mention that people settle at $3 500 per track.